92 Decision Citation: BVA 92-06139
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 89-24 911 ) DATE
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THE ISSUE
Entitlement of the appellant to an apportionment of the
veteran's compensation benefits on behalf of two of the
veteran's children.
REPRESENTATION
Appellant represented by: Department of Veterans Affairs,
California
Veteran represented by: Department of Veterans Affairs,
Washington
ATTORNEY FOR THE BOARD
T. D. Harrigan, Counsel
INTRODUCTION
This case came before the Board of Veterans' Appeals (Board)
on appeal from a February 1989 special apportionment
decision of the Seattle, Washington, Regional Office (RO).
The veteran had active military service from September 1960
to September 1987. The notice of disagreement was received
in March 1989. The statement of the case was issued in May
1989. The substantive appeal was received in May 1989. The
case was received at the Board in August 1989. The case was
remanded by the Board in June 1990. A supplemental
statement of the case was issued in August 1990. The case
was again received at the Board in January 1991. It was
returned to the RO to allow the appellant's representative,
the California Department of Veterans Affairs, to present
additional written argument. That argument was presented in
December 1991. The claim was returned to the Board in
January 1992. The case is now ready for appellate review.
CONTENTIONS ON APPEAL
The appellant contends that the RO should have granted an
apportionment of the veteran's compensation benefits on
behalf of his two dependent children. She asserts that
under the terms of her divorce decree, she should receive
one-half of the veteran's retired pay, $500 per month
spousal support and $350 per month child support. She
reports that she receives one-half of the veteran's retired
pay, but that, since his retired pay is reduced by the
amount of his Department of Veterans Affairs (VA)
compensation benefits, her share of his retired pay is less
than it should be. She also asserts that the veteran is not
paying medical expenses required by the divorce decree.
The veteran asserts that the appellant receives half of his
retired pay and that he pays $350 per month child support.
He contends that after paying his regular monthly expenses
he has only $69 left to cover any emergencies.
DECISION OF THE BOARD
For the reasons and bases hereinafter set forth, it is the
decision of the Board that the appellant should not receive
an apportioned share of the veteran's compensation benefits.
FINDINGS OF FACT
1. The veteran is in receipt of compensation benefits at
the rate provided for a 40 percent disability plus
additional special monthly compensation at the rate provided
at 38 U.S.C. § 1114(k).
2. The veteran has regularly paid $350 per month in child
support for his two children.
3. The appellant has not demonstrated hardship.
CONCLUSION OF LAW
Hardship on the part of the appellant is not shown and the
veteran is adequately providing for the support of his
dependent children. 38 U.S.C. § 5307; 38 C.F.R.
§§ 3.450(c), 3.451.
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The appellant has advanced contentions concerning the
veteran's purported failure to comply with all the terms of
their divorce decree. In that regard, we note that it is
not the function of the Board to act as an arbitrator of
domestic disputes or to enforce court-ordered property
settlements. Additionally, since the parties are divorced
an apportionment of VA benefits for the support of the
appellant cannot be made. Any apportionment to be made
would apply only for the support of the veteran's children
in the custody of the appellant. Our decision with regard
to an apportionment must be based upon the veteran's
responsibility to support his children and the financial
situation of the parties.
The record demonstrates that the veteran has made regular
child support payments of $350 per month. In addition the
appellant receives approximately $500 of the veteran's
military retired pay. On that basis, we conclude that the
veteran has adequately provided for the support of his
children since his divorce from the appellant. That being
the case, an apportionment is not payable. 38 C.F.R.
3.450(c).
The appellant has reported that her monthly expenses
slightly exceed her monthly income; however, the difference
is small. We conclude that the appellant has not
demonstrated that her current financial resources are
inadequate to provide for the veteran's children in her
custody. In the absence of hardship, she has not
established a basis for a special apportionment of the
veteran's compensation benefits. 38 C.F.R. § 3.451.
ORDER
Entitlement of the appellant to an apportionment of the
veteran's compensation benefits on behalf of his children is
denied.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
G. H. SHUFELT
E. M. KRENZER
38 U.S.C. § 7102(a)(2)(A) (1991) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C. § 7266 (1991),
a decision of the Board of Veterans' Appeals granting less
than the complete benefit, or benefits, sought on appeal is
appealable to the United States Court of Veterans Appeals
within 120 days from the date of mailing of notice of the
decision, provided that a Notice of Disagreement concerning
an issue which was before the Board was filed with the
agency of original jurisdiction on or after November 18,
1988. Veterans' Judicial Review Act, Pub. L. No. 100-687,
§ 402 (1988). The date which appears on the face of this
decision constitutes the date of mailing and the copy of
this decision which you have received is your notice of the
action taken on your appeal by the Board of Veterans'
Appeals.